Leasing rule must apply to all equally

Mark PearlsteinCHICAGO TRIBUNE

Q: We purchased a unit in Chicago about 10 years ago. At that time, the association had a rule limiting rental to non-relatives to 12 months one time only. Last year the association voted to allow rentals only where the owner had a hardship or owned the unit before 1987.

Does this establish two classes of ownership in violation of the condo act?

A: The new rule is problematic and probably violates the Illinois Condominium Property Act.

The board can propose and obtain approval for an amendment that exempts all current tenants or owners. An exemption for a certain group of current owners violates Section 18(b)(2) of the act, which states that an association shall have one class of ownership.

There also is no basis for selecting a cut-off year for leasing that is 20 years earlier than the effective date of the amendment. An amendment that benefits certain owners is improper.

Q: I live in a large condo complex. The board is trying to pass a resolution that prohibits hardwood floors based on a feud between a board member and the owner above her.

Can the board come into my home and tell me I cannot have certain flooring? What are the rights of owners concerning the inside of our homes?

A: The board can adopt rules and regulations consistent with the provisions of the declaration and bylaws. Most declarations contain a section entitled "use and occupancy restrictions." These restrictions include a provision that residents shall not engage in conduct that annoys others.

The board can adopt a rule that prevents wood floors from becoming a nuisance. Though the board cannot prohibit the flooring, it may adopt regulations or provide in the declaration that owners may install wood flooring only with a sound-absorbent under layer. The directors can specify the thickness and type of material that will minimize noise from flooring surfaces.

Q: I live in a condo recently transferred from a developer after 75 percent of the units were sold. I have since learned that three of the five board members are related to or work for the developer, giving the developer control of the board. Is this legal?

A: No. Section 18.2(a) of the Condominium Act provides for the election of the initial board comprising a majority of unit owners other than the developer. This election takes place within 60 days after the developer has closed 75 percent of the units, or three years after recording of the declaration, whichever comes first.

If people affiliated with the developer control a majority of the board, the board is not composed of a majority of unit owners. Your association should hold another turnover election meeting.

Q: Our board allowed one unit owner to create a private patio out of common space in front of their unit. After many objections from owners, the board understood the gravity of this action. However, the directors think that by posting a notice in our mail room that the patio was common space they have resolved the issue. The board refuses to remove the patio and have the area landscaped again.

Other than suing the board, is there anything we can do to get the directors to become more responsive to the needs of the owners?

A: Based on the Illinois Appellate Court case Carney vs. Donley, the directors had to obtain the unanimous consent of the ownership before conveying an interest in the common elements to a unit owner. Your question does not reference any such vote. The board should remove the patio and restore the area to the condition that existed before the unauthorized addition.

Perhaps a short course on fiduciary duty is needed. Electing new directors is a better alternative.

Be prepared: The Community Associations Institute will present a seminar on "Emergency and Disaster Preparedness" July 23 at the Northwestern University School of Law, 350 E. Chicago Ave., Room 150. The program will be from 7 to 9 p.m. Call the CAI at 847-301-7505.

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Mark Pearlstein is a Chicago lawyer who specializes in condominium law and is chairman of the legislative committee of the Illinois chapter of the Community Associations Institute. Write to him c/o Condominiums, Chicago Homes, 4th Floor, Chicago Tribune, 435 N. Michigan Ave., Chicago IL 60611. You may e-mail questions to realestate@tribune.com. Sorry, he can't make personal replies. Answers will be supplied only through the paper.